States Assert New Activist Immigration Role in Altered Political Landscape

January 18, 2011

Policy Beat

By Muzaffar Chishti, Claire Bergeron

A number of state legislatures are working together to challenge the interpretation of the 14th Amendment that grants birthright citizenship for U.S.-born children of unauthorized immigrants.

In the aftermath of the mid-term elections, the contentious debate on national immigration policy has shifted to the states as many state legislatures around the country are gearing up to introduce strict immigration enforcement measures targeting unauthorized immigrants.

Legislators in more than 20 states have announced plans to introduce bills modeled after Arizona's controversial immigration law (SB 1070), and lawmakers in a number of states plan to introduce a series of coordinated state measures aimed at denying U.S. citizenship to the children of unauthorized immigrants.

Though states have assumed an increasing role in immigration legislation since 2005, the more recent moves come as Republican lawmakers, many of whom ran on campaign promises to "get tough" on unauthorized immigrants, gained more than 690 additional state legislature seats — the highest gain made by the party in more than 80 years.

States Follow Arizona's Lead

Perhaps the most significant sign of the push for immigration enforcement action at the state level is the number of state legislators who have moved ahead with plans to introduce bills modeled after Arizona's SB 1070.

The Arizona law, which was signed into law last April, requires all state and local law enforcement officers to inquire into the immigration status of anyone stopped, detained, or arrested under suspicion of violating a state or local law if an officer has a "reasonable suspicion" that an individual is an unauthorized immigrant. The law also makes it a state crime for noncitizens to fail to carry proof of their immigration status, and it requires the state to detain arrested individuals until their immigration status can be determined.

The future of SB 1070 remains uncertain. Over the summer of 2010, seven separate lawsuits, including one filed by the U.S. Department of Justice, were brought in federal court challenging the law's constitutionality. In July, a federal district court judge in Arizona found that several of the law's provisions were likely preempted by federal immigration law, and ruled in favor of the U.S. government. Arizona subsequently appealed this decision to the United States Court of Appeals for the Ninth Circuit, which heard arguments on the matter in November but has yet to issue a decision. In the meantime, the most controversial provisions of SB 1070 have remained stayed per the initial ruling.

Prior to the mid-term elections, the expectation was that other states would await the outcome of the Arizona litigation before introducing their own versions of SB 1070. The shift in electoral realignment after the mid-term elections, however, appears to have created new political momentum that has emboldened other states to introduce similar immigration enforcement bills.

In South Carolina, for example, a bill modeled after the Arizona law has already passed in a state senate subcommittee, while in Oklahoma, a state representative plans to introduce an "Arizona plus" immigration enforcement measure during the coming year. Most observers of state legislatures agree that six states — Georgia, Mississippi, Nebraska, Pennsylvania, South Carolina, and Oklahoma — are the most likely to introduce bills similar to SB 1070 this year.

However, even in states such as Wyoming and Idaho where immigration enforcement has not traditionally been a contentious political issue, state lawmakers have announced plans to file bills modeled after the Arizona legislation.

States Challenge Birthright Citizenship

In another move to wrest more control over immigration enforcement, conservative lawmakers from a number of states announced on January 5 a coordinated initiative to challenge the current interpretation of the 14th Amendment to the U.S. Constitution that guarantees birthright citizenship.

Specifically, lawmakers endorsed two separate state-level proposals as part of the initiative: a model bill that would allow states to reserve "state citizenship" for children of U.S. citizens and lawful permanent residents, and a draft state compact that would direct Congress to tighten birthright citizenship requirements. The movement's ultimate goal is to deny automatic citizenship to children born in the United States to unauthorized immigrants.

Lawmakers in 40 states have signed on to support the new initiative according to State Legislators for Legal Immigration, the group which is spearheading the movement.

The 14th Amendment, which Congress adopted in 1868, states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Since the amendment's adoption, various Supreme Court and lower court decisions have held that the amendment applies equally to all U.S.-born children, including those of unauthorized immigrants. The only exception to the birthright citizenship guarantee of the 14th Amendment is for children born to foreign dignitaries with diplomatic immunity (who are thus not subject to the nation's laws).

The legislators backing the movement to alter the interpretation of the 14th Amendment argue that the courts' historical understanding of the amendment is erroneous because children born to unauthorized immigrant parents are not subject to U.S. jurisdiction and should therefore be ineligible for birthright citizenship.

They also claim that the policy of birthright citizenship (sometimes called jus soli) has spurred increased levels of illegal immigration because unauthorized immigrants gain the ability to be sponsored for lawful permanent residence in the United States when they parent U.S.-born children.

Detractors of the movement, on the other hand, emphasize that there is scant evidence that unauthorized immigrants are motivated to enter the United States in order to take advantage of birthright citizenship. Current U.S. immigration law does not allow citizens to sponsor their parents for legal immigration status until the child reaches the age of 21, and parents who entered the United States without permission are often not eligible to receive legal status.

Last summer, a number of House and Senate Republicans — including some who have often been viewed as moderates on immigration issues — said that they would support an amendment to the Constitution that would deny birthright citizenship to the children of unauthorized immigrants.

Because the process of introducing and adopting constitutional amendments is extremely difficult and time-consuming, requiring approval by two-thirds of the House and Senate and three-fourths of the state legislatures, a new amendment at this stage seems unlikely. State action on immigration is thus considered by many to be the most likely option for initiating policy change.

Although the introduction of state-level bills on birthright citizenship would avoid the cumbersome constitutional amendment process, the new strategy by the states faces its own uphill battle.

Critics of the new initiative have emphasized that any state bill denying citizenship to the children of unauthorized immigrants could potentially lead to every state having its own citizenship policy, and that this would be preempted by federal law, which establishes citizenship as an exclusive federal prerogative.

The new state-level legislative measures will almost certainly be challenged in federal court, paving the way for a series of arduous and expensive legal battles at a time when most states are facing significant budget deficits. In addition, political observers have noted that the push to alter the meaning of the 14th Amendment could alienate Latino voters — a group whose support is increasingly considered crucial to the political future of the Republican Party.

The state legislators pushing for changes in the current birthright citizenship laws, however, maintain that the goal of the movement is not to change the application of birthright citizenship on a state-by-state basis, but to force courts to reexamine the issue on the federal level. Supporters have also emphasized that the intent is to send a very public message to Congress that conservative state legislators expect action on immigration enforcement issues in 2011.

Read more about the controversy surrounding Arizona's SB 1070 in the July and August Policy Beats.

Read a recent report from the Pew Hispanic Center on the number of U.S. citizen children who have unauthorized immigrant parents.

Read MPI's recent analysis on the potential impacts of denying birthright citizenship to the children of unauthorized immigrants.

Policy Beat in Brief

Gallegly to Lead House Immigration Subcommittee. In a surprise maneuver during the first week of the 112th Congress, new House Judiciary Committee Chairman Lamar Smith (R-TX) announced that Representative Elton Gallegly (R-CA) will serve as the House's immigration subcommittee chair, passing over Steve King (R-IA), who was widely expected to be named to the post. Both Gallegly and Smith are well known for their hard-line views on immigration enforcement. In the press release acknowledging his new post, Gallegly announced that his subcommittee's first hearings would focus on oversight of Immigration and Customs Enforcement's (ICE) worksite enforcement program.

Read Representative Gallegly'spress release acknowledging that he will serve as the House immigration subcommittee chairman.

U.S. to Resume Deportations to Haiti. ICE will resume deporting Haitian nationals to Haiti beginning in mid-January 2011, ending the moratorium on deportations that the agency implemented following the earthquake that devastated the country a year ago. ICE officials have emphasized that they are working to ensure that all deported individuals are safely transported to Haiti. Several immigrant-rights groups have heavily criticized the announcement, however. Earlier this month, six groups filed an emergency petition with the Inter-American Commission on Human Rights (IACHR), asking it to direct the United States to halt the deportations. The petition states that as a result of continued political unrest, high levels of street violence, and a recent cholera epidemic in Haiti, Haitian nationals will face human-rights violations if they are deported.

Read the press release issued by the Center for Constitutional Rights (CCR) detailing the IACHR petition.

Judge Denies Asylum Request for Mexican Police Officer. An immigration judge in Texas has denied a request for political asylum filed by a former Mexican police officer. The case generated interest because of media reports pointing to a surge in Mexican police officers filing for asylum in the United States as a result of the recent increase in gang-related violence in Mexican border states. Recent statistics from the Department of Homeland Security (DHS) and the Executive Office of Immigration Review (EOIR) indicate that the number of Mexican nationals who are granted asylum in the United States is fairly small. According to DHS and EOIR, in 2009 only 192 Mexicans were granted asylum "affirmatively" before DHS, while 62 individuals were granted asylum "defensively" in removal proceedings.

There are two processes by which individuals can apply for asylum in the United States: affirmative asylum cases are initiated by immigrants who, regardless of their immigration status, choose to submit an application for asylum to U.S. Citizenship and Immigration Services, while a defensive processing occurs when an applicant requests asylum in a courtroom-like proceeding presided over by the Executive Office for Immigration Review as a defense against deportation. In either case, an applicant must demonstrate that he or she has been subjected to past persecution or has a "well-founded fear" of future persecution based on his or her race, ethnicity, religion, political opinion, or membership in a particular social group in order to be eligible for asylum in the United States.

Judge Rules Mentally Disabled Immigrants Must Be Provided With Legal Counsel. A federal district court judge in California ruled that the government must provide legal counsel for two mentally disabled immigrants in removal proceedings. The decision marks one of a few instances where a judge has required the appointment of legal counsel for an individual in immigration court. Immigrants facing deportation have no constitutional right to legal counsel because removal proceedings are considered civil rather than criminal trials, but a number of prominent legal advocacy organizations have lobbied for amending the current regulations to provide counsel for certain discrete populations, like disabled noncitizens. According to EOIR, just 39 percent of the removal cases completed in 2009 were cases in which the noncitizen defendants were represented by legal counsel.

Read the recent press release on the new decision, issued by the ACLU of Southern California.

Mexican Nationals to Participate in Global Entry Program. U.S. Customs and Border Protection (CBP) announced that it would extend the "Global Entry" trusted traveler program to qualified Mexican nationals beginning December 29, 2010. Through the program, preapproved travelers entering the United States from abroad are permitted to avoid customs by declaring their entry to the United States at specialized kiosks that scan travelers' machine-readable passports and confirm their identity by taking their digital fingerprints. Currently, U.S. citizens and lawful permanent residents, as well as citizens of the Netherlands, are eligible to apply to participate in the Global Entry program. DHS has also indicated that it plans to sign an agreement with Germany that would allow its nationals to participate.

ICE Settlement on Health Care in Immigration Detention. Immigrant advocacy organizations and civil liberties groups announced that they had reached a settlement agreement with ICE in a lawsuit filed in June 2007 charging that the government denied immigration detainees at the San Diego Correctional Facility (SDCF) adequate medical care. Under the terms of the settlement, ICE will ensure that all detainees receive a level of health care that meets or exceeds the National Commission on Correctional Health Care standards, and will amend its policy of providing only emergency medical treatment to detainees held at SDCF. The agency will also staff a full-time psychiatrist and four full-time psychiatric nurses at the detention facility.

Obama Signs Two Private Immigration Bills. President Obama signed into law private immigration bills that will allow two foreign nationals from Japan to apply for lawful permanent residence. The first bill benefits Shigeru "Shiggy" Yamada, a 28-year-old who was brought to the United States as a child but was unable to apply for lawful permanent residence after his mother died in a car accident. The second bill benefits Hotaru Ferschke, the Japanese widow of a U.S. Marine who was unable to apply for permanent residence through her husband because they were married by proxy, which is not recognized as valid for U.S. immigration law purposes. Private immigration bills are an extremely rare form of relief granted to individuals who are unable to apply for immigration status through regular administrative channels. The bills for Yamada and Ferschke are the first private immigration bills in five years to be approved by Congress.

Tennessee Law Verifying the Citizenship Status of Detainees Takes Effect. A new law in Tennessee that requires law enforcement officials to verify the immigration status of any individual who has been arrested in the state went into effect on January 1, 2011. Under the terms of the law, which Tennessee Governor Phil Bredesen signed on June 28, 2010, Tennessee officials are required to notify ICE if they determine that an arrested individual appears to be residing in the United States in violation of the Immigration and Nationality Act. Officials who work at detention facilities that are already participating in ICE's Criminal Alien Program are exempted from the new requirements.

New Governors in Maine and Rhode Island Rescind Prior Executive Orders. In one of his first official acts, Rhode Island Governor Lincoln Chafee rescinded an executive order issued by his predecessor that had required the state police to enter into a section 287(g) agreement with ICE authorizing them to enforce certain aspects of federal immigration law. The executive order also directed all state agencies to enroll in the federal government's E-Verify program in order to check that new employees were authorized to work.

In a parallel development, the new governor of Maine, Paul LePage, also reversed a predecessor's executive order on immigration policy. The order barred state officials in Maine from asking individuals about their immigration status. In rescinding the order, LePage noted that the former policy created the impression that Maine was a "sanctuary state" for unauthorized immigrants.

Farmers Branch, TX to Appeal Latest Ruling on Rental Ordinance. The city of Farmers Branch, Texas, filed an appeal with the United States Court of Appeals for the Fifth Circuit requesting the review a federal judge's decision that struck down a city policy intended to prevent landlords from renting housing to unauthorized immigrants. The policy required all prospective tenants in Farmers Branch to obtain rental licenses from the city, which could deny licenses to individuals who did not hold lawful immigration status in the United States. Since 2006, Farmers Branch has passed three separate rental ordinances targeting unauthorized immigrants, all of which have been struck down as unconstitutional by federal judges. The city estimates that it has now spent more than $3.7 million defending the measures.

Massachusetts and Colorado to Participate in Secure Communities. The governors of Massachusetts and Colorado announced that they will sign agreements with ICE allowing their states to participate in the government's Secure Communities program, a controversial immigration enforcement initiative through which ICE screens the fingerprints of all individuals arrested in participating jurisdictions against federal immigration databases. While ICE has credited the Secure Communities program with aiding in the removal of a record number of "criminal aliens," critics of the program allege that it primarily targets low-level offenders who are arrested for minor violations. As of this writing, ICE had implemented Secure Communities in 969 jurisdictions in 37 states.

NY Governor Issues Pardons to 24 More Noncitizens. Outgoing New York Governor David Paterson issued 24 more criminal pardons to noncitizens facing deportation because of their prior criminal convictions in what was the final round of pardons to be issued following recommendations made by the governor's immigrant "pardon board." Paterson created the pardon board in May of 2010 after he issued a pardon to a 29-year-old U.S. lawful permanent resident born in China who was facing deportation for crimes he committed as a teenager. According to the governor's office, the pardon board received more than 1,100 pardon applications between May and December 2010. Newly elected Governor Andrew Cuomo has not yet announced if he will maintain the immigrant pardon board.